Friday, February 29, 2008

The internet is bringing increased transparancy to the workings of the US Congress as C-SPAN is now publishing an index of its House and Senate floor proceedings -- The C-SPAN Congressional Chronicle. According to the site, "the video recordings are matched with the text of the Congressional Record as soon as the Record is available. It only includes members who appeared on the floor to deliver or insert their remarks. The text included is what the member submitted. Each appearance has a video link where users can watch and listen to the actual statements."

The site states that available coverage includes the 108th (2003-2004), 109th (2005-2006), and 110th (2007-present) Congresses. It seems that the 107th (2001-2002) and 106th (1999-2000) Congresses were added in late 2007. Apparently, C-SPAN is in the early stages of populating their content as notallthevideo is available online yet. Earlier Congresses are expected to be added as the video is digitized and indexed at the rate of two Congresses per year.

As part of a nationwide day educating and protesting capital punishment sponsored by the National Lawyers Guild, the BLS chapters of the National Lawyers Guild and ACLU held an event on Thursday, February 28 at the Law School. More information on the work of the National Lawyers Guild and the Student Day Against the Death Penalty on March 1, 2008 is available at the website of the NLG.

The BLS occasion featured a screening of the 2005 Court TV film, The Exonerated, Guilty until Proven Innocent which was directed by Bob Balaban and starred Brian Dennehy, Danny Glover, Delroy Lindo, Aidan Quinn and Susan Sarandon. The movie dramatizes the stories of six people who had been wrongfully convicted of murder, but were later exonerated and freed after spending years on death row. The trailer for the film is posted below.

Bobby Quackenbush, a 2L member of the National Lawyers Guild talks about the film and discusses how the BLS chapter of the NLG under the supervision of Professor Nathaniel Berman works on projects in areas of international human rights, legal issues related to unemployment, labor, affirmative action, veteran rights and law student organizing.

Thursday, February 28, 2008

In a case from the Southern District of New York, Fed Ex couriers over the age of 40 sued their employer under the Age Discrimination in Employment Act (ADEA) alleging discriminatory employment practices in programs tying their compensation and continued employment to certain performance benchmarks favoring younger couriers and disfavoring older ones. Prior to suing, the employees filed with the EEOC an affidavit that described the problem and an “intake questionnaire” asking the EEOC to “please force Federal Express to end their age discrimination plan” instead of filing a formal “charge”. The employer moved to dismiss the complaint based on the ADEA's exhaustion requirements in §626(d) which provides that employees must first file a discrimination charge with the EEOC and wait 60 days before filing a lawsuit to allow the commission time to resolve the matter with the employer. The District Court dismissed the complaint based on the pre-suit notification language of the ADEA. The Second Circuit partially reversed at 440 F. 3d 558. The Supreme Court granted certiorari and issued its decision in Federal Express Corp. v. Holowecki yesterday.

In a 7-to-2 decision, the majority ruled against the employer’s strict exhaustion arguments and in favor of the employees who, with the support of the EEOC, advocated a more permissive standard. Justice Kennedy stated:

“If a filing is to be deemed a charge it must be reasonably construed as a request for the agency to take remedial action to protect the employee’s rights or otherwise settle a dispute between the employer and the employee”.

If the litigants had been represented by counsel, one wonders whether the ruling would have had a different outcome as the Court noted that under its

“...permissive standard a wide range of documents might be classified as charges. But this result is consistent with the design and purpose of the ADEA. Even in the formal litigation context, pro se litigants are held to a lesser pleading standard than other parties.”

The ruling is in marked contrast with last year’s Ledbetter v. Goodyear Tire and Rubber Co. where the court ruled 5 to 4 that employees complaining about discrimination in pay forfeited their right to sue if they did not file a formal complaint with the Equal Employment Opportunity Commission within 180 days of a manager’s discriminatory pay decision. The different outcomes result from the language in the relevant statutes. Both Title VII and the ADA expressly require the filing of a verified charge, the ADEA does not and lower courts have permitted ADEA claims to proceed upon the filing of an Intake Questionnaire, letter or other unverified document.

In a strong dissent, Justice Thomas criticized the malleability of the Court’s decision stating:

“Today the Court decides that a “charge” of age discrimination under the Age Discrimination in Employment Act of 1967 (ADEA) is whatever the Equal Employment Opportunity Commission (EEOC) says it is…..Today’s decision does nothing—absolutely nothing—to solve the problem that under the EEOC’s current processes no one can tell, ex ante, whether a particular filing is or is not a charge.”

Wednesday, February 20, 2008

In an important ruling on criminal procedure involving federalism and the retroactive application of Supreme Court decisions in state court criminal cases, the Supreme Court decided in Danforth v. Minnesota that state courts are free to function independently of the federal courts in following the retroactive effect of those rights. In reversing the Minnesota Supreme Court's decision in the case, the US Supreme Court wrote:

New constitutional rules announced by this Court that place certain kinds of primary individual conduct beyond the power of the States to proscribe, as well as watershed" rules of criminal procedure, must be applied in all future trials, all cases pending on direct review, and all federal habeas corpus proceedings. All other new rules of criminal procedure must be applied in future trials and in cases pending on direct review, but may not provide the basis for a federal collateral attack on a state-court conviction. This is the substance of the "Teague rule" described by Justice O'Connor in her plurality opinion in Teague v. Lane, 489 U. S. 288 (1989). The question in this case is whether Teague constrains the authority of state courts to give broader effect to new rules of criminal procedure than is required by that opinion. We have never suggested that it does, and now hold that it does not.

The Danforth case was an appeal of a Minnesota conviction for sexual abuse of a six-year-old boy based on videotaped testimony. At the trial, the victim was found incompetent to testify in court and told his story on videotape. After Danforth’s conviction and unsuccessful appeals, the Supreme Court ruled in Crawford v. Washington that pre-recorded testimony without the possibility of cross-examination is unconstitutional. Danforth filed a second habeas petition, seeking to have the Crawford decision applied retroactively to his case.

Reversing the Minnesota high court by a 7-2 vote, the US Supreme Court said that state courts are not bound by the same limits that apply to federal courts. A state "should be equally free to give its citizens the benefit of our rule in any fashion that does not offend federal law," Justice John Paul Stevens wrote for the court. Chief Justice John Roberts and Justice Anthony Kennedy dissented. In a ringing endorsement of federalism, the Supreme Court, having laid down a rule on retroactivity for federal cases in Teague, has ruled that state courts are free to devise their own procedural rules even when they are more generous than federal standards.

Friday, February 15, 2008

In this podcast, we hear Professor Christopher Serkin explain the theories which he explores in his latest addition to legal scholarship in an article entitled Existing Uses: Retroactive Land Use Regulations and the Takings Clause. The article is a preliminary draft that is currently under revision and is expected to be published soon. Since joining the BLS faculty in 2005, Professor Serkin has continued his significant contributions to legal scholarship focusing on property, land use and local government. A list of selected works of Professor Serkin is available here.

Saturday, February 9, 2008

As gentrification in the Williamsburg section of Brooklyn continues, affordable housing advocates are seeking to acquire a 15-acre plant site in Williamsburg owned by the Pfizer Corporation. Pfizer was involved in the landmark 2005 US Supreme Court case Kelo v. City of New London that has been much criticized for permitting eminent domain abuses.

According to a report in Friday’s Wall Street Journal Health Blog by Jacob Goldstein, Pfizer is trying to sell its property to a private developer. However, New York Assemblyman Vito Lopez (D–Williamsburg), the chairman of the Assembly’s housing committee and Joseph Lentol (D–Greenpoint) plan to introduce a bill to taken the Pfizer property by eminent domain in order to build affordable housing on the site. Details of the story are found in a January 26 article in the Brooklyn Paper.

Sunday, February 3, 2008

In a major setback for opponents of the Atlantic Yards development project in downtown Brooklyn, the 2nd Circuit Court of Appeals affirmed the dismissal of a complaint challenging eminent domain action on the grounds that it violated the Public Use Clause of the Fifth Amendment. See the NY Times article reporting the decision. The Court ruled in Goldstein v. Pataki that the plaintiffs failed to demonstrate that the project’s public benefit was a “pretext” to benefit Bruce Ratner, the private developer behind the project.

The plaintiffs challenged the condemnation as a private taking in violation of the Fifth Amendment and alleged that the “public uses” the state agencies advanced for the project were pretexts to benefit Bruce Ratner whose company first proposed it and who serves as the Project’s primary developer. The “pretext” argument was based on the Supreme Court’s decision in Kelo v. City of New London decided in 2005. The Court of Appeals rejected the “pretext” claim stating:

“We do not read Kelo’s reference to “pretext” as demanding, as the appellants would apparently have it, a full judicial inquiry into the subjective motivation of every official who supported the Project, an exercise as fraught with conceptual and practical difficulties as with state-sovereignty and separation-of-power concerns. Beyond being conclusory, the claim that the “decision to take Plaintiffs’ properties serves only one purpose” defies both logic and experience.

“At the end of the day, we are left with the distinct impression that the lawsuit is animated by concerns about the wisdom of the Atlantic Yards Project and its effect on the community. While we can well understand why the affected property owners would take this opportunity to air their complaints, such matters of policy are the province of the elected branches, not this Court.”

In the two years since the Kelo decision, many states have introduced eminent domain reform legislation in response to overwhelming public disapproval of the ruling. The effectiveness of those legislative efforts is questioned in a well researched article entitled The Limits of Backlash: Assessing the Political Response to Kelo by Ilya Somin. The article suggests that widespread political ignorance may contribute to the ineffectiveness of most eminent domain reforms. The plaintiffs challenging the Atlantic Yards development project are far from politically ignorant. Unless the Supreme Court takes their case and overrules Kelo, their struggle against eminent domain in this case seems over.